By: Al LaSorte
Published: January 2022
One reason that mediations fail is parties arriving at mediation with unrealistic expectations about settlement terms. By educating their clients about the mediation process and frankly discussing the strengths and weaknesses of their cases with them, lawyers significantly increase the likelihood of reaching a mediated settlement.
Several reasons for clients’ unrealistic mediation expectations come to mind. First, litigation is stressful. Whether as plaintiff or defendant, a pending suit can be the most stressful problem in a client’s life. Litigants with little court experience may be hoping the other side will just wave the white flag at mediation and give them the result they seek. This, of course, never happens in the real world.
Second, because lawyers generally like their clients and their cases, it’s understandable that some “preaching to the choir” occurs between lawyers and clients about their cases’ strength. While expressions of case enthusiasm may engender clients’ confidence in their lawyers, they can also make it harder for clients to objectively evaluate their cases’ weak points, thereby overestimating their own cases and underestimating their opponents’. This, in turn, makes compromise much harder to achieve. And compromise, of course, is the very heart of the mediation process.
Third, law firm ads on TV, radio, social media and billboards bragging about their clients’ huge recoveries no doubt inflate expectations as to what plaintiffs can expect in their own cases. The same is true when clients hear anecdotally about all the money Uncle Louie or their next-door neighbor won in their lawsuits.
For mediation to succeed, it is crucial for all parties to objectively evaluate their cases’ strengths and weaknesses, as well as outside issues such as collectibility, before entering the mediation room (or, more likely these days, joining the Zoom conference).
Granted, it’s not always easy for lawyers to be candid with clients about their cases’ weaknesses. Will the client think the lawyer doesn’t believe in their case if she points out its flaws? Will the client maybe start looking elsewhere?
There is an obvious tension between a lawyer’s roles as advocate and as counselor. But clients need both. A frank discussion of a case’s bad points not only increases the likelihood of settlement at mediation, it also helps with expectations in the event the case ultimately has to be tried.
Clients also may not appreciate how outside variables can impact the result if the case must be tried, regardless of the case’s merits. Witnesses’ memories fade; judges are human, and sometimes make mistakes; many areas of the law are unsettled and therefore uncertain; appeals are expensive and difficult, and can take years to complete. Building an informed and realistic client requires all these issues be discussed and taken into account.
Managing client expectations requires certain steps before, and others during, mediation. Before mediation, be sure to incorporate discussion of the weaknesses in your client’s case, and the uncertainties in litigation in general, into your preparation regimen with the client. This can be done constructively, and doesn’t have to cause your client to doubt your enthusiasm, or your intention to give one hundred percent toward achieving the best possible result for them.
There are so many things that could go right, or wrong, in every lawsuit. Yet, I can’t tell you how many times, as a mediator, a party bragged to me that “my lawyer says I’ve got a ninety percent chance to win. Why should I settle for less?”
Clients with such high expectations are understandably reluctant to compromise meaningfully. A more candid pre-mediation discussion with the client about what could go wrong would help them to understand the real risks, and to factor them into their evaluation of what a reasonable compromise would look like.
Ideally, your mediator will be someone the client considers authoritative. Retired judges have that gravitas which lends them credibility in a mediation setting. So do litigators with long careers in the particular area involved in the case. A mediator who has spent years trying similar cases will likely be seen by your client as an expert. With that expertise comes credibility as to the hurdles that the case presents.
During mediation, look to the mediator for assistance with an unrealistic client. In private caucuses, don’t hesitate to ask the mediator what problems they anticipate a trial will present.
Then, when the mediator moves to a different room, take advantage of this private time with your client to discuss the points the mediator just raised. This can be done constructively, and without sounding like you think the case is a loser. Remember, you are not just their trial lawyer, you are their counselor. So, counsel them!
In conclusion, successful mediation depends on your client becoming as objective as possible about the chances of success and failure. Frank discussion in advance of, and during, mediation will help your client develop reasonable expectations, in turn increasing the likelihood of settlement.
For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee/
After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases, Mr. LaSorte now acts exclusively as mediator and expert witness through his own firm, Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation. (www.LaSorteMediation.com). Mr. LaSorte can be reached at (561) 286-7994 and Al@LaSorteMediation.com.